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Wednesday, August 31, 2022

Narrative Capacity

Toomey, James, (August 31, 2021).
100 N.C. L. Rev. 1073
Available at SSRN: https://ssrn.com/abstract=3914839


The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.

The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in a cognitive theory of personhood, and determines whether to recognize private decisions based on the cognitive abilities thought by philosophers to entitle persons in general to unique moral status. But to align with the purposes of the substantive doctrines of property and contract, private-law capacity should instead be grounded in a narrative theory of personal identity. Rather than asking whether a decision-maker is a person by measuring their cognitive abilities, the doctrine should ask whether they are the same person by looking to the story of their life.

This Article argues for a new doctrine of capacity under which the law would recognize personal decision-making if and only if it is linked by a coherent narrative structure to the story of the decision-maker’s life. Moreover, the Article offers a test for determining which decisions meet this criterion and explains how the doctrine would work in practice.


Scholars and courts have long recognized that the threshold doctrine of capacity in private law requires reform to meet the needs of our aging society.  What they have not clearly seen is the doctrine’s fundamental error—a philosophical misalignment between the legal test, based on the construct of personhood, and its purposes, which are concerned with personal identity. This Article has excavated this distinction. And it has articulated and evaluated an alternative.

We think of ourselves as stories and we make meaning of our lives through our stories. That is what is at stake in the doctrine of capacity—whether an individual may continue to write their story by making decisions and choices.  Concern for the stories of our lives should be a paramount guiding principle of the capacity doctrine. In short, courts should only intervene in our decision-making where the story we would tell with our choices ceases to be our story at all.